Madras High Court
Ganesan vs Jebasian Jeyakumar on 4 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 4.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(PD)(MD) No.2245 of 2014
and
M.P.(MD) No.1 of 2014
Ganesan Petitioner
vs.
Jebasian Jeyakumar Respondent
Civil Revision Petition filed under Article 227 of the Constitution
of India against the Fair and Decreetal order dated 26.8.2014 passed
in I.A.No.937 of 2013 in O.S.No.252 of 2012 on the file of the I
Additional District Munsif, Tirunelveli.
For Petitioner : Mr.H.Arumugam
For Respondents : Mr.V.Balaji
ORDER
The revision has been filed by the defendant against the order
passed by the Trial Court in the petition filed by him in I.A.No.937 of
2013 in O.S.No.252 of 2012 in dismissing the petition in respect of
two amendments out of seven amendments sought to be made in the
written statement while allowing the other five amendments.
2. The brief facts are as under:-
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The revision petitioner is the defendant in O.S.No.252 of 2012
on the file of the I Additional District Munsif Court, Tirunelveli. The suit
was filed seeking for recovery of possession. It is the case of the
respondent/plaintiff that the petitioner/defendant approached him
during the month of January 2005, to get a house on rent. At that
time, the petitioner/defendant had paid a sum of Rs.30,000/- to the
plaintiff and it was agreed that towards the interest, the defendant
should be allowed to keep the premises for a period of five years and
whenever he wants to vacate the, the amount of Rs.30,000/- should
be paid by the plaintiff. Since the defendant had refused to vacate,
the suit for recovery of possession was filed.
3. The petitioner/defendant had filed written statement not only
denying the mortgage but also he had set up a counter claim of oral
agreement dated 5.8.2001, whereby the plaintiff had agreed to sell the
property to him and from then onwards, the defendant had been
paying several payments totalling to the tune of Rs.1,28,900/- out of
the total sale consideration agreed at Rs.160,000/- and the balance
sale consideration of Rs.31,100/- was remaining to be paid.
4. The Trial Court had framed issues and the matter was taken
up for trial. Witnesses on both sides were examined and closed. The
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matter was posted for arguments. At that stage, the
petitioner/defendant had filed a petition seeking for amendment of the
pleadings.
5. The particulars of amendments sought for are as under:-
"(1) In Para 8 of the written statement in the 2nd
line delete the word "that" and substitute
"whether".
(2) In para 8 of the written statement in the 4th
line delete the word "go".
(3) In para 8 of the written statement in the 5th
line delete the word "argument" and substitute
"agreement".
(4) In para 8 of the written statement in the 6th
line after the word no such delete the word "no".
(5) In para 10 of the written statement in the 4th
line after the word the insert the word "suit".
(6) In para 11 of the written statement in the 1st
line after the word "oral" insert the word "Sale".
(7) In para 13 of the written statement in relief
"a"1st line delete the word "defendant" and
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substitute "plaintiff"."
6. The respondent/plaintiff had filed a counter objecting the
amendment of pleadings. In the counter, the respondent/plaintiff had
specifically stated that the defendant, having admitted at para 8 that
the transaction is a usufructuary mortgage, cannot seek for
amendment at this stage. However, during enquiry, the plaintiff had
agreed for amendment of pleadings except amendments 1 and 5.
7. The Trial Court had allowed the petition amending the plaint
except items 1 and 5. Aggrieved by the rejection in respect of
amendments 1 and 5, the present revision has been filed by the
petitioner/defendant.
8. The learned counsel for the revision petitioner would submit
that having allowed the amendment of pleadings in part, the Trial
Court ought to have allowed the amendment in items 1 and 5 also. He
would further submit that the cumulative reading of the entire written
statement was that the petitioner had denied that there was
usufructuary mortgage and even right from the date of giving reply,
the petitioner had denied the usufructuary mortgage and in fact, he
had made a counter claim that there was oral sale agreement in
between the petitioner/defendant and the respondent/plaintiff and the
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Trial Court ought not to have read the first sentence in para 8 in
isolation and held it to be an admission. Having not stated anything
with regard to other amendments, the Trial Court ought to have
allowed the petition and the Trial Court ought not to have rendered a
finding with regard to the merits of the case. He would also contend
that the Trial Court has to take into consideration the entire materials
on record including the oral evidence and ought not to have rendered a
finding as if the petitioner had accepted that there was a usufructuary
mortgage and thereby he would seek to set aside the order.
9. The learned counsel for the petitioner would further submit
that Section 58 of the Evidence Act, no doubt, postulates that admitted
facts need not be proved, however, the Trial Court had wrongly come
to the conclusion that the petitioner had made a specific admission
whereas it is not so. The learned counsel would submit that as per the
proviso to Section 58 of the Indian Evidence Act, it is for the
discretion of the court to require the facts to be admitted to be proved
otherwise than admitted by such admission. When the petitioner had
made out a case for specific performance and had let in evidence, the
Trial Court cannot isolate a few sentences in the written statement and
take advantage of those parts of the sentences which are favourable
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to the plaintiff and render a decision. He would reiterate that the Trial
Court has to take the entire materials available on record rather than
pulling out a few sentences from the written statement and thereby he
would seek that the finding of the Trial Court has to be set aside and
the court has to look into the entire materials.
10. Per contra, Mr.Balaji, learned counsel for the respondent
would submit that the petitioner had made a categorical admission at
para 8 and having admitted that it is usufructuary mortgage, the
petitioner cannot be permitted to amend the same. The admission in
the pleading cannot be allowed to be amended. However, the
petitioner/defendant is entitled to explain or clarify the situation in
what circumstances the error has crept in the written statement and
he would further submit that only to avoid further delay, even without
permitting the court to look into the due diligence, the respondent
fairly conceded for amendment in respect of five items out of 7
amendments sought for and had objected in respect of items 1 and 5.
He would reiterate that the suit is of the year 2012 and because of the
pendency of this revision, the case is still pending.
11. Heard the learned counsel appearing for the parties and
perused the materials available on record.
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12. The petitioner has sought to make seven amendments in his
pleadings. The respondent/plaintiff had conceded in respect of all the
amendments except 1 and 5. The Trial Court, while allowing the
petition in part and rejecting it in respect of amendment items 1 and 5,
had rendered a finding as if the petitioner had admitted it to be
usufructuary mortgage and that it would alter the nature of the
defence.
13. The court has also relied on the judgment in S.Malla Reddy
& others v. Future Builders Co-operative Housing Society &
others (2013 (3) CTC 343) and held that once the defendant filed
written statement admitting the claim of the plaintiff and praying for
decree of the suit, he cannot get back and file an application to strike
out the pleadings in the written statement.
14. But, as far as the facts of his case is concerned, except a
stray admission in the first sentence of para 8, taking into
consideration the entire written statement, there is no admission that
it is usufructuary mortgage and thereby this court finds such a
sentence need not be read isolated and construed it as an admission.
15. Though it is a settled law that facts admitted need not be
proved as per Section 58 of the Indian Evidence Act, the proviso to
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such section makes it clear that it is for the discretion of the court to
require the facts to be admitted to be proved otherwise than admitted
by such admission and the Trial Court cannot isolate a few sentences
in the written statement and take advantage of those parts of the
sentences which are favourable to the plaintiff and render a decision.
The Trial Court has to take into consideration the entirety of the
written statement and it must be satisfied that the plaintiff has proved
his case beyond any doubt otherwise than the stray admission
inadvertently made by the defendant in the written statement.
Therefore, at this stage, this court is not inclined to interfere with the
order passed by the court below. It is made clear that the court has to
take into consideration the entire materials available on record and
decide the suit independently taking into consideration the facts and
circumstances in accordance with law in light of proviso to Section 58
of the Indian Evidence Act. The revision petitioner/defendant is
permitted to explain and clarify the circumstances under which the
said admission has been made in the first sentence of para 8. Any
observation made by this court except the above one, made in this
revision shall not have any bearing on the suit.
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16. With the above observations, the civil revision petition is
disposed of. No costs. The connected Miscellaneous Petition is
closed.
4.10.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate/litigant concerned.
To
I Additional District Munsif,
Tirunelveli.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
C.R.P.(PD)(MD) No.2245 of 2014
and
M.P.(MD) No.1 of 2014
4.10.2021.
https://www.mhc.tn.gov.in/judis/
